McCall v. Atchley
| Decision Date | 03 March 1914 |
| Citation | 164 S.W. 593,256 Mo. 39 |
| Parties | JOHN M. McCALL, Appellant, v. HATTIE ATCHLEY |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. Nat M. Shelton, Judge.
Reversed and remanded (with directions).
John C McCall pro se; Higbee & Mills of counsel.
(1) The first count of the petition states a good cause of action. The demurrer admits all the facts pleaded; the execution of the will devising 240 acres of land to defendant, the death of the testator, probate of will and suit by the only child and heir to contest it, the employment, in writing, by defendant on behalf of herself and her ward of plaintiff and the other attorneys to defend the suit and propound the will and to give them one-fourth of the property in value devised to them if the will should be sustained, or one-fourth of whatever might be recovered by them in said action by compromise or otherwise. It avers compliance by the attorneys, that defendant secretly compromised with contestant and received a conveyance from him of 200 acres of land devised to her of the value of $ 8000, a refusal to defend the suit and judgment declaring that it was not the last will of deceased, and refusal to pay her attorneys, the assignment of the interest of Higbee & Mills in the contract to plaintiff. The contract was expressly authorized by Secs 964 and 965, R. S. 1909. Defendant cannot justly accept with one hand the benefits of the contract and with the other withhold payment. Wait v. Railroad, 204 Mo. 491. (2) If plaintiff was not entitled to money judgment, then the second count states a good cause of action for a judgment for specific performance of the contract declaring plaintiff entitled to an undivided one-fourth part of the 200 acres obtained by defendant in compromise of the litigation. Defendant had the right to settle her cause of action propounding the will without the consent of her attorneys, but their right under their contract of employment was liquidated by the settlement. Hurr v. Railroad, 141 Mo.App. 222.
H. F. Millan for respondent.
(1) The circuit court committed no error in sustaining the demurrer to the petition. (2) The contract sued on is set out in, and made a part of the petition, and averments as to the meaning or construction of the contract are not admitted by the demurrer. Blaine v. Knapp, 140 Mo. 241. (3) The rule of pleading is more stringent in bills for specific performance than in other cases. Neudower v. Baker, 121 Mo. 273. (4) In Jordan v. Davis, 172 Mo. 599, the plaintiff sued for money collected by defendant as plaintiff's attorney and improperly retained by defendant. The defendant by way of offset set up in his answer that the plaintiff by written contract employed him to bring a suit against one Chouteau for $ 31,900 claimed by said Jordan as a commission due him from Chouteau on the sale of real estate, agreeing by said contract to give Davis one fourth of all sums recovered. He alleged that Jordan after the suit was brought failed and refused to give security for costs as required by the court and that the suit was dismissed by the court by reason of such failure. He claimed judgment for one fourth of the amount of said claim of $ 31,900. Judge Burgess, who delivered the opinion, on page 609 says, "If it is true as claimed by defendant that plaintiff failed to comply with the terms of the contract in consequence of which the suit was dismissed, then the defendant's remedy if he complied with the contract on his part was for damages for breach of contract or upon quantum meruit for whatever his services were reasonably worth -- but in no event under the circumstances disclosed was the measure of damages one fourth of the sum that might possibly have been recovered." On the same question see Duke v. Harper, 8 Mo.App. 296. (5) The sections of the statute cited by appellant have nothing to do with this case. It is not a question here of what kind of contracts the parties may make -- but what kind of a contract did they make. There was no restraint on defendant's right to compromise the action. She had a perfect right to settle out of court, and without the consent of her attorneys. Her rights in this regard are not restricted as they might have been. They saw fit to make a contract limiting their rights to a part of what was recovered in the action. It is certainly plain that plaintiff cannot recover on the contract. Plaintiff may have some other cause of action but it is not stated in the petition. The first count of the petition is for a money recovery. This plaintiff is not entitled to under the contract. The second count is for specific performance. This is not authorized under the contract and facts stated.
The petition consists of two counts. The first states that the plaintiff is an attorney at law as are also Edward Higbee, John C. Mills and Walter Higbee, the last named three composing the firm of Higbee and Mills; that in May, 1906, one Nathaniel M. Ervin of Adair county died testate devising 240 acres of land in said county to the defendant and certain other lands to her ward Noble Edward Dean, a minor, and leaving as his sole heir his son Harry N. Ervin; that upon the probate of the will in said county Harry N. Ervin brought suit against defendant and her said ward to contest the will; and while said action was pending the defendant employed the plaintiff and Higbee and Mills for herself and ward to defend said action by the following writing:
That plaintiff and Higbee and Mills accepted the terms of said employment and filed an answer in said cause duly propounding the will and were at all times ready, able and willing to comply with the terms of said contract on their part and did in fact comply with it.
That while said cause was pending the defendant secretly and without the knowledge or consent of plaintiff or of said Higbee and Mills and for the purpose of cheating and defrauding her said attorneys settled and compromised said action and refused to make any defense thereto; that by the terms of said compromise it was agreed between said Harry N. Ervin and defendant that defendant should make no further defense in said suit but should let judgment go against her by default and that the said Ervin would thereupon convey to her in fee two hundred acres fully described in the petition of the lands devised to her in said will; that said land was of the value of $ 8,000; that the terms of this compromise were fully carried out, the said Ervin taking judgment that said will was not the will of Nathaniel M. Ervin and conveying the two hundred acres of land to defendant, and that she thereupon took and still retains possession thereof, while said judgment remains in full force; by reason of all of which her said attorneys became entitled to receive the full compensation provided in said contract; that is to say, "the value of one-fourth part of said lands so conveyed to defendant by said Harry N. Ervin, but the defendant, although often requested so to do, has refused to pay plaintiff and the said Higbee and Mills or either of them the one-fourth of the value of the property recovered as aforesaid by compromise and settlement or any part thereof, and still refuses."
The petition then alleges the assignment to plaintiff of the interest of Higbee and Mills and asks judgment for $ 2000.
The second count states all the same facts; that by reason of the premises plaintiff and Higbee and Mills "became and were entitled to receive and recover from the defendant the one-fourth part of said lands so conveyed to the defendant by the said Harry N. Ervin as aforesaid;" a sufficient demand of defendant for the conveyance thereof; her refusal; and prays a decree vesting in plaintiff the title to said one-fourth part of said lands and for partition. Each of these counts sets forth the facts with all the details necessary to a full understanding of the theory upon which it is founded.
The defendant demurred to each count upon the ground that it did not state facts sufficient to constitute a cause of action and the demurrer was sustained as to both. The plaintiff refusing to plead further judgment was given for defendant from which this appeal is taken.
I. It has long been settled by adjudication in the courts of this State that contracts between attorney and client by which the latter undertakes to pay to the former fees contingent upon the result of litigation pending or to be instituted, are valid and binding upon the parties, and will be enforced at law according to their terms. [Kersey v. Garton, 77 Mo. 645; State ex rel. v. Butler County, 164 Mo 214; Duke v. Harper, 8 Mo.App. 296; Price v. Haeberle, 25 Mo.App. 201; Moss v. Richie, 50 Mo.App. 75; Cosgrove v. Burton, 104 Mo.App. 698.] It is equally well settled that the compensation so provided for may consist of a proportion of the amount to be recovered or...
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Barthels v. Garrels
... ... 904; Belch ... v. Schott, 171 Mo.App. 357, 157 S.W. 658; ... Whitecotton v. St. Louis & H. R. Co., 250 Mo. 624, ... 157 S.W. 776; McCall v. Atchley, 256 Mo. 39, 164 ... S.W. 593; Gillespie v. American Car & Foundry Co., ___ ... Mo.App. ___, 194 S.W. 1064; Mytton v. New York, C. & ... ...
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Section 4.25 Mutuality of Obligation and Remedy
...of a contingent fee contract because the defendant could not have required the lawyer to have performed specifically. McCall v. Atchley, 164 S.W. 593 (Mo. 1914). This probably is not the law in Missouri today. In Jones v. Jones, 63 S.W.2d 146 (Mo. 1933), on similar facts, the plaintiff’s at......